The
Half Moon Bay City Council's appointment of George J. Carman to the Planning
Commission and his membership thereon violate the city ordinance requiring
members of the Planning Commission to be residents of the City of Half
Moon Bay.

Issue: Is George
Carman eligible to serve as a member of the City of Half Moon Bay Planning
Commission?

Following the November
2001 municipal election, a new slate of City Council members took office
in Half Moon Bay. Among their early actions were the removal of a number
of citizens as members of various commissions of the city and the appointment
of their replacements. Section 2.24.020 of the City of Half Moon Bay Municipal
Code requires all members of the Planning Commission to be residents of
the city.

At the time of the
appointment of George Carman as a member of the Planning Commission on
January 8, 2002, the council was aware of the controversy surrounding
the residency of George Carman and his wife, Eleanor Wittrup (Chair of
the Board of the Coastside County Water District). It was reported in
the Half Moon Bay Review on November 21, 2001, that documents presented
at a Coastside County Water District board meeting indicated Ms. Wittrup
and her husband Mr. Carman had purchased a new home in Stockton, California,
had executed loan documents attesting that the new home was to be their
primary residence, and had listed their home in Half Moon Bay for sale.

Following the City
Council action the 2001-2002 Grand Jury obtained evidence that Mr. Carman
executed a claim for homeowner's property tax exemption in San Joaquin
County seeking to obtain a homeowner's exemption for their Stockton home.
In the affidavit signed and dated October 1, 2001, Mr. Carman certified
under penalty of perjury that the San Joaquin County property was his
primary residence.

After reviewing this
evidence, the Grand Jury wrote to the mayor of Half Moon Bay on March
6, 2002, requesting information and certification as to the residency
of the members of the Planning Commission. In a letter to the Grand Jury,
dated March 28, 2002, the City Manager provided verification of residency
for all Planning Commission members with the exception of Mr. Carman.

The Grand Jury Foreperson
called this omission to the City Manager's attention. The City Manager
then provided two Half Moon Bay addresses for Mr. Carman. The Foreperson
pointed out that an individual has but one legal residence at a time.
The City Manager then provided Mr. Carman's "current address."
Mr. Carman does not own the property at that address, and the property
appears to be rented to others.

Based
on the evidence provided to the Grand Jury, it is clear that George Carman
has moved his principal residence to San Joaquin County and is therefore
ineligible to serve on the City of Half Moon Bay Planning Commission.

The City of Half
Moon Bay should immediately remove George Carman, a non-resident of
Half Moon Bay, from the Planning Commission.

Recommendation
2

The Half Moon Bay
City Council should consider all information available to be certain
on a continuing basis that its appointees are legally qualified to serve
and, where there is any lack of clarity, be responsive to the citizens
and explain their reasoning to the public.

On April 15, 2002,
the San Mateo County Civil Grand Jury issued a Final Report finding
George Carman ineligible to serve on the Half Moon Bay Planning Commission
and recommending that the City Council immediately remove Mr. Carman
from the Planning Commission. In accordance with California Penal Code
section 933.05, this letter is the City of Half Moon Bay's required
response to the Final Report.

After reviewing
and giving careful consideration to the Final Report of the Grand Jury,
the City Council of Half Moon Bay makes the following response to the
Final Report:

The
City Council of Half Moon Bay wholly disagrees as a matter of law
with the finding of the Grand Jury that George Carman is ineligible
to serve on the Half Moon Bay Planning Commission.

The
Grand Jury's recommendation to immediately remove George Carman from
the Planning Commission will not be implemented because as a matter
of law it is not warranted.

With
regard to the Grand Jury's second recommendation, the City Council
already considers all of the information available to it when determining
whether its public officials are legally qualified to serve. It is
the intention of the City Council to continue to do this in the future
and to be responsive to the inquiries of the public.

Grand Jury's
Legal Analysis

The Grand Jury's
final report appears to rely almost solely on the fact that Mr. Carman
claimed a homeowner's property tax exemption in San Joaquin County.
However, the Grand Jury's conclusion does not comport with judicial
and legal opinions rendered on this matter in the State of California.
Both the California Attorney General and a California Court of Appeal
have concluded that a public official's claim of a property tax exemption
is not a dispositive indicator of that official's "residence"
for purposes of determining whether the person is qualified for office.
The City Council is surprised that, despite the fact that the Grand
Jury was aware of these contradictory opinions prior to the Final Report's
release, the Grand Jury failed to address either opinion or cite any
legal opinions to support its own conclusions.

In an April 4, 2002, memorandum, Half Moon Bay City Attorney Adam Lindgren
provided a legal analysis of Mr. Carman's residency status to the City
Council. This memorandum was also made available to the Grand Jury prior
to the release of the Final Report.

In reaching an opinion
as to whether Mr. Carman was a resident for purposes of Half Moon Bay
Municipal Code section 2.24.020, the City Attorney provided an analysis
of state law involving the definition of residence contained in Government
Code section 244. Since the City has not yet clearly defined what constitutes
residency in section 2.24.020 of the City Code, it was and remains the
City Attorney's opinion that in interpreting the meaning of the word
"resident" in the ordinance, it was appropriate to consider
and rely upon the requirements for residency under Government Code section
244. The City Attorney concluded that if Mr. Carman satisfied the requirement
of Government Code section 244, that Mr. Carman would satisfy the Municipal
Code's residency requirements. The City Council agrees with the City
Attorney that this was the proper analysis to make regarding this matter.

In reaching the
conclusion that Mr. Carman is a resident of the City of Half Moon Bay,
the City Attorney provided the following analysis:

"It
is the opinion of the California Attorney General that 'the 'term'
residence in [Government Code section 244] connotes 'domicile,' '
The Attorney General has consistently opined that domicile requires
both physical conduct and the element of intent, and that while
an individual may have only one domicile, he or she may have multiple
dwellings. Accordingly, the acquisition of multiple dwellings does
not necessarily establish a change in domicile [citing 84 Cal.Atty.Gen.Ops.
154 (August 30, 2001) (emphasis added)].

"In analyzing
whether a new domicile has been acquired by a public officer, the
Attorney General has 'traditionally considered such indicia as the
address shown on the person's tax returns, driver's license, homeowner's
exemption, telephone listing, voter registration, and automobile
registration.' [citing 84 Cal.Atty.Gen.Ops. 154 (August 30, 2001)]
This is consistent with decisions by the courts of California, that
have considered items such as voter registration and the address
shown on a person's tax returns when determining residence or domicile
[citing Johnson v. Johnson, 245 Cal.App.2d 40 (1966)]."

In this instance,
Mr. Carman has stated that his intent is to be a resident of the City
of Half Moon Bay. He has provided a number of documents, including voter
registration and driver's license, which support his statements that
he is a resident of the City. As for the homeowner's tax exemption claimed
by Mr. Carman, the City Attorney's memo specifically addressed this
as well:

"
claiming such an exemption is not a conclusive indicator of legal
residence. Both the Attorney General [citing 72 Cal.Atty.Gen.Ops 8
(February 17, 1989)] and a state appellate court [citing Fenton v.
Board of Directors, 156 Cal.App.3d 1107 (1984)] have been presented
with instances where a public official's residency status was challenged
because the official claimed a homeowner's exemption on property located
outside of the jurisdiction where the official was serving. In both
instances, the Attorney General and the court found in favor of the
public official because there was sufficient factual evidence (addresses
listed on driver's license, voter registration, etc.) to support he
official's claim that a dwelling located inside the jurisdiction was
the official's legal residence."

Despite the fact
that the Grand Jury was given a copy of the City Attorney's analysis
prior to issuing its Final Report, the Final Report does not indicate
that the Grand Jury considered this body of law in reaching its conclusion.

Factual Evidence

The lack of evidence
in support of the Grand Jury's finding deserves attention. As noted
above, intent is a key element for determining residence. However, other
than the homeowner's property tax exemption, it is not clear to the
City what, if any, evidence, other than conjecture, the Grand Jury relied
on. The City provided the Grand Jury with Mr. Carman's current address
in Half Moon Bay, to which the Grand Jury responded in its Final Report,
"... the property appears to be rented to others." (emphasis
added) Given the lack of factual evidence, the City Council cannot accept,
or agree with, a finding based on appearances.

Furthermore, the
City informed the Grand Jury, prior to the release of the Final Report,
that Mr. Carman had provided the City with a current, signed lease for
the property in question. Both Commissioner Carman and his wife have
signed the agreement. The Grand Jury, however, failed to address this
contradictory evidence in its Final Report. The City also finds it troubling
that the Grand Jury did not address any other indicia which might have
shown that Mr. Carman is a resident of the City: his voter registration
information, his driver's license, etc. In addition, the Grand Jury
apparently never asked Mr. Carman to testify or provide evidence as
to his residence - an omission made even more troubling by the existence
of legal opinion highlighting such material as posi6ive indicia of residence.
Finally, Mr. Carman recently wrote the San Joaquin County Assessor to
advise it that he no longer wishes to claim a homeowners exemption for
his San Joaquin County Property; Mr. Carman has advised the City the
he had made a similar request orally prior to his being appointed to
the Planning Commission.
In light of the fact that the Grand Jury's Final Report: (1) failed
to identify a single legal precedent in support of its conclusions;
(2) failed to address published legal opinions which are contrary to
the conclusions reached by the Grand Jury; and (3) failed to provide
sufficient factual evidence that George Carman is not a resident of
Half Moon Bay, the City Council is unable to agree with or to accept
the Grand Jury's findings regarding George Carman's eligibility to serve
on the Half Moon Bay Planning Commission.

With respect to
the second recommendation of the Grand Jury, the City Council already
considers all of the information available to it when determining whether
its public officials are legally qualified to serve. The City Council,
in appointing George Carman was aware of his residency status and considered
all of the information available to it in determining whether he was
eligible to serve. For the reasons discussed above, the City Council
continues to be satisfied that George Carman is legally qualified to
serve on the Planning Commission. Finally, the City Council will continue
to consider all available information regarding the service eligibility
of it's appointed officials and will continue to be responsive to the
inquiries of the public.